Court File No.

T-1663-19

FEDERAL COURT

~DIAN BROADCASTING CORPORATION / SOCIETE

RADIO-CANADA

Applicant

CONSERVATNE PARTY OF CANADA, CONSERVATNE FUND

CANADA, DUSTIN VAN WGT and JOHN DOE

Respondents

Application under rule 300 of the Federal Court Rules, SOR/98-106 and
section 34 of the Copyright Act, RSC 1985, c. C-42

FRESH AS AMENDED NOTICE OF APPLICATION

TO THE RESPONDENTS)

A PROCEEDING HAS BEEN COMMENCED by the Applicant. The relief

claimed by the Applicant appears on the following page.

THIS APPLICATION will be heard by the Court at a tune and place to be fixed
by the 3udicial Administrator. Unless the Court orders otherwise, the place of hearing
will be as requested by the Applicant. The Applicant requests that this application be
heard at Toronto, Ontario.

IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any

step in the application or to be served with any documents in the application, you or a
solicitor acting for you must file a notice of appearance in Fonn 305 prescribed by the
Federal Courts Rules aid serve it on the Applicant's solicitor or, if the Applicant is
self-represented, on the Applicant, WITHIN IO DAYS after being served with this
notice of application.
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Copies of the Federal Courts Rules, infornlation concerning the local offices of
the Court and other necessary information inay be obtained on request to the
Administrator of this Court at Ottawa (telephone 613-992-4238) or at any local office.

IF YOU FAIL TO OPPOSE THIS APPLICATION, JUDGMENT MAY BE

GIVEN 1N YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU.

~~ I ~ a ZO~9 Q~rGINAL 31GNED BY

I~WIL I~CAMAL
Pate Issued by ,
(Registry icer
Address of
local office; 180 Queen Street West
Suite 200
Toronto, Ontario
MSV 3L6

TO: DENTONS CANADA LLP

Toronto-Dominion Centre
77 King Street West, Suite 400
Toronto ON MSK OA1

Matthew Diskin
Te}: 4 ] 6-863-4391
matthew.drskinla~dentans.c,4m

Lawyers for the Respondents

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APPLICATION

The Applicant makes Application for:

1. A declaration that the respondents, Conservative Party of Canada,

Conservative Fund Canada, Dustin Van Vugt and/or John Doe have engaged in

the unauthorized use of copyright-protected material owned by the applicant,

Canadian Broadcasting Coiporation/Societe Radio-Canada, in contravention of

the Copyright Act, R.S.C. 1985, c. C-42, as amended;

2. An interim and interlocutory injunction restrainizig the respondents from

publishing the Infringing Material (as defined below) or from further

publishing or otherwise disseminating any material that infringes on the

applicant's copyright;

3. A permanent injunction restraining the respondents from publishing the

Infringing Material (as defined below) and from further publishing or otherwise

disseminating any material that infringes on the applicant's copyright;

4. The costs of this proceeding on a substantial indemnity scale; and

5. Such further and other relief as this Honourable Court deems just.

The grounds for the application are:

The Parties

6. The applicant, Canadian Broadcasting CorporatioivSociete Radio-Canada

(`CBC/Radio-Canada"), is the Canadian national public broadcaster with the

 mandate specified in the Broadcasting Act, 1991, S.C. 199 ] , c. l l . Pursuant to

that mandate, CBC!Radio-Canada delivers a wide range of pro~-ams that

inform, enlighten and entertain and is a critical source of mews and information

throughout Canada.

7. The Conservative Party of Canada (the "Conservative Party") is a federal

political party in Canada.

8. Dustin Van Vugt ('`Van VugY') is the Executive Directoz- of the Conservative

Party.

9. The Conservative Fund Canada (the ``Conservative Fund") is a non-share

capital corporation incorporated under the Canada Corporations Act, R.S.C.

1970, c. C-32. According to the Constitution of the Conservative Party, the

Conservative Fund is the Chief Agent of the Conservative Party. It is also the

Chief Agent of the Conservative Party registered with Elections Canada

pursuant to the Catradn Elections Act, S.C. 2000, c. 9.

10. The Conservative Party, on its own or tlu-ough its agents, is responsible at law

for all decisions made and actions taken in its name, including the impugned

conduct described in this Application.

11. Further, or in the alternative, Van Vugt, as Executive Director of the

Conservative Party, is responsible at law for all decisions made and actions

taken in the name of the Conservative Party, including tl~e impugned conduct

described in this Application.

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] 2. Further, or in the alternative, the Conservative Fund, as Chief Agent of the

Conservative Party, is responsible at law for all decisions made and actions

taken in the name of the Conservative Party, including the impugned conduct

described in this Application.

13. Further or in the alternative, John Die, an individual yet to be identified, is

responsible at law for all decisions made and actions taken in the name of the

Conservative Party, including the impugned conduct described in this

Application.

Respondents use CBC Material on various websites

14. The Conservative Party operates a website found at

http://www.notasadvertised.ca ("Not as Advertised Page"). The Not as

Advertised Page indicates that it is "authorized by the Chief Agent of the

Conservative Party of Canada".

15. The Conservative Party operates a Facebook webpage under the name

"Conservative Party of Canada — Parti Conservateur du Canada'' and with the

handle @cpcpcc ("Facebook Page"). The Facebook Page can be found at:

hops:l/www.facebook.coni/cpcpcc/videos/2444207782~92G22/UzpfS
TEvMDY5MzE3MTI5Nzc3Nzo~~OTcxODISNTcSNTE3NDQx/

1 C. The Conservative Party operates a YouTube webpage under the name

"Corisei-vative — Conservateur" ("YouTube Page"). Tl~e YouTube Page ca~a

be found at:
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hops://www.~~~outube.comi~vatch?tithe ecmtinue= ~~Cv=RGmosFblVUO

S

17. On or about October 4, 2019, the Conservative Party published a 1:4C minute

video titled "Look at What We'~~e Done" on the Not as Advertised Page, the

Facebook Page and the YouTube Page.

18. The "Look at What We've Done" video contains multiple excerpts taken from

CBC/Radio-Canada programs ("CBC Material"). In particular:

(a) starting at or around 0:23, the video displays an excerpt from the "At

Issue" se~nent from CBC's The National program originally broadcast

on Decembez- 20, 2017. CBC owns the copyright in this material;

(b) starting at or around 0:27, the video displays two excerpts from a CBC

Politics broadcast of a town hall event that Prime Minister Justin

Trudeau attended on or about January 1, 2018, and originally broadcast

live by CBC on that same date. The two excerpts have been cut and

edited together in the '`Look at What We've Done Video", to snake

them appear as if they were a single continuous excerpt. CBC owns the

copyright in this material;

(c) starting at or around 0:57, the video displays an excerpt from CBC's

Poivei- c3~ Politics program originally broadcast on April 9, 2019. CBC

owns the cop}~right i~~ this material; and

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(d) starting at or around 1 :02, the video disp]ays an excerpt from CBC's

The National pro~-am originally broadcast on September 23, 2016.

CBC owns the copyright in this material.

19. The CBC/Radio-Canada logo and graphics az-e visible throughout the CBC

Material described at paragraphs 18(b) and (c) above. The CBC Material

described at paragraphs 18(a) and (d) above (taken from The National program)

are readily recognizable to viewers ox listeners as CBC programming, despite

the fact that the CBC/Radio-Canada logo does riot appear in them.

20. The CBC Material captures the skill and judgment of CBC journalists and

producers.

21. The CBC Material is copyright-protected and the applicant CBC/Radio-Canada

owns the copyright.

22. The "Look at What We've Done" video was removed from the Not as

Advertised Page, the Pacebook Page and the YouTube Page on or about

October 10, 2019.

Respontle~zts use CBCMate~~ial o~z Tfvitte~°

23. The Conservative Party operates a Twitter page found at

https://twitter.com/CPC H~ and under the handle @CPC_HQ ("Twitter

Page"). The Twitter Page indicates that it belongs to "Canada's Official

Opposition, led by @AndrewScheer'.

 ~~

24. The Conservative Party also operates a French language version of the Twittei-

Page, found at https://twitter.con~/PCC 1-lQ and under the handle @PCC_HQ

("French Twitter Page'').

2~. Over the course of October 7 and S, 2019, the Conservative Party published a

series of tweets on the Twitter Page and French Twitter Page that included

video excerpts from the English-language Federal Leaders' Debate ("Leaders'

Debate"), an event that occurred in connection with the 2019 Federal election

and was broadcast by CBC earlier that same evening ("Debate Material''). In

particular:

(a) On or about October 7, 2Q19, the Conservative Party published a tweet

on the Twitter Page, which includes a 0:42 minute video excerpt from

the Leaders' Debate. The tweet was available at:

htt~s://twitter.com/CPC HQ/status/1181359341485662208. The video

excerpt consists of statements made by the Conservative Party leader,

Andree~v Scheer. The tweet contains the introductory text: "Let's.

#cdnpoliVOTE #e1xn=~3VOTE", made in response to a tweet by Libera]

party leader Justin Trudeau prior to the Leaders' Debate that states, in

part, "Round two. Let's go."

(b) On or about October 7, 20] 9, the Conservative Party published a tweet

on the Twitter Page, which includes a 0:21 minute excerpt from the

Leaders' Debate. The tweet was available at:

https:/ltwitter.com/CPC HQ/status/1181367217277083648. The

 excerpt consists of statements made by the Conseitiative Party leader,

Andrew Scheer, NDP leader Jagrneet Sing11 and the debate moderator.

The tweet contains the introductory text: "Trudeau.

#NotAsAdvertised".

(c) On or about October 7, 2019, the Conservative Party published a tweet

on the French Twitter Page, which includes a 0:21 minute excerpt from

the Leaders' Debate. The tweet was available at:

https://twitter.comlPCC ~/status/1181367207168745473. The

excerpt consists of statements made by the Conservative Party leader,

Andrew Scheer, NDP leader Jagmeet Singh and the debate moderator.

The tweet contains the introductory text: "Trudeau.

#PasCelui QuilPretendaitEtre".\

(d) On or about October 8, 2019, the Conservative Party published a tweet

on the Twitter Page, which includes a 0:14 minute excerpt from the

Leaders' Debate.. The tweet was available at:

https://twitter.com/CPC HQ/status/1181572015972589568. The

excerpt consists of statements made by the Conservative Party leader,

Andrew Scheer, and Liberal leader Justin Trudeau. The video contains

the "CBC News Network" logo, as well as banner text above and below

the video reading: "Trudeau continues to lie to Canadians about

breaking the ]aw. Share this video." The tweet contains tl~e following

introductory text:
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Trudeau continues to lie about the SNGLavalin corniption

scandal. He still claims the whole thing is false, even after he
was investigated and found to have broken the law. Last night
Trudeau unrepentantly lied to Canadians all over again. He's
not fit to lead. #cdnpoliVOTE #elxn43VOTE

26. As a member of the Canadian Debate Production Partnership (together with a

number of other media organizations), CBC/Radio-Canada participated in

moderating, producing, broadcasting and organizing the Leaders' Debate.

27. The Debate Material captures the skill and judgment of CBC/Radio-Canada's

employees and producers.

28. The Debate Material is copyright-protected and the applicant

CBC/Radio-Canada owns the copyright,

29. The tweets described above containing the Debate Material were removed from

the Twitter Page and French Twitter Page on or about October 10, 2019.

Respondeizts' bread: of CBC/Radio-Ca~iada's copyright

30. The respondents' use of CBC/Radio-Canada copyright-protected material in

the websites and tweets described above ("Infringing Material") was

unauthorized and infringes CBC's copyright contrary to s. 3(1) of the

Copyright Act, R.S.C. 1985, c. C-42, as amended.

31. The CBC Material and Debate Material copyright-protected material are

original works of video and sound recording that capture tl~e work of

CBC/Radio-Canada journalists and producers. It is tluougl~ the skill and

 judgment of CBC joun~alists and producers that the material has been created

and made so attractive for tl~e respondents to use foi- their own pui1~oses.

32. each video of the Infringing Material reproduced a substantial part of the

CBC/Radio-Canada copyright-protected material that takes advantage of the

skill and judgment of the CBC/Radio-Canada, its journalists and producers.

33. Such use by the respondents was for partisan and promotional ends and meets

none of the purposes permitted under the Copyright ,4ct. As such, it does not

constitute fair dealing under the Copyright Act.

34. Nor does the respondents' use of CBC/Radio-Canada's copyright-protected

material meet the requirement of fairness. The Infringing Material received

wide distribution through the Internet. The excerpts of CBC/Radio-Canada

copyright-protected material contained in the Infringing Material represent a

qualitatively significant portion of each of the videos. The excerpts are taken

out of context and are edited and relied on to make partisan points for the

benefit of the respondents.

35. There were alternatives available to the respondents that would avoid the

infringement. For example, the respondents' websites could have published a

hypei-linlc leading to the material on the CBC/Radio-Canada website. In the

case of the Debate Material, the respondents could have posted either the entire

debate, or debate segjnents (all responses to a particular question) that have

been made available to all political parties.

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36. The respondents may have published additional material that similarly

infringes CBC/Radio-Canada's copyright. Full details of any such additional

instances are within the kno~~~ledge of the respondents. CBC/Radio-Canada

pleads that any further publication of similar inatenal constitutes copyright

infringement that entitles it to the remedies sought in this application.

The impact of the respondents' copyright in~•i~Tgei~ient o,z CBC/Radio-Canada and

its journalists

37. As with every other broadcaster governed by tale Broadcasting Act,

CBC/Radio-Canada is obligated to provide programing of "high standard",

which includes fair and balanced reporting on matters of public interest.

38. To meet that requirement, CBC/Radio-Canada has enacted its own Journalistic

Standards and Practices ("JSP"). The JSP statzs that during an election period,

CBCiRadio-Canada's coverage will be fair and balanced "over the course of

the campaign",

39. In addition, pursuant to regulations made under the Broadcasting Act,

CBC/Radio-Canada is required to allocate time for programs of a partisan

political character on an equitable basis to all political parties during an election

period.

40. By using the CBC/Radio-Canada creative ~natei~al as they have in the

Infringing Material and including it i~l clearly partisan messages, the effect of

the respondents' dealing with the CBC/Radio-Canada copyright-protected

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work is highly damaging to the CBC!Radio-Canada journalists and producers

and to CBC/Radio-Canada itself.

41. The respondents' use of CBC/Radio-Canada's copyright-protected material in

the Iilfi-inging Material diminishes the reputatio~~ of CBC/Radio-Canada, its

journalists and producers, and takes advantage of their respected integrity and

independence in a way that undermines public confidence in Canada's national

public broadcaster at a critical tune: during a national election campaign in

which their coverage must be seen, more than ever, as trustworthy, independent

aild non-partisan.

42. Selectively editing various news items together to present a sensational and

one-sided perspective against one particular political party nay leave a viewer

with the impression that CBC/Radio-Canada is biased, contrary to its

obligations under the Broadcasting Act.

43. Furthermore, such usage of CBC/Radio-Canada work could leave the

impression that CBC/Radio-Canada has improperly allocated its broadcast time

in favour of certain po]itical parties in violation of its legal obligations.

44. In the digital age; where trust in t17e media is constantly being attacked, and

where credible news outlets are regularly accused of bias, this false impression

among viewers is particularly damaging to CBC/Radio-Canada's reputation as

a trusted source of news, and as Canada's ~~ublic broadcaster.

 45. The respondents' actions interfere with CBC/Radio-Canada's ability to fulfill

its mandate to inform and enlighten under the BroadcastingAct, by diminishing

the public's perception of CBC/Radio-Canada and its journalists and producers

as reliable and independent sources for news and information.

46. The independence enjoyed by CBC/Radio-Canada in the pursuit of its statutory

mandate is of such importance that it is specifically mentioned on four different

occasions in the Broadcasting Act.

Respondents' Repeated and Improper Cazduct

47. The respondents have intentionally and knowingly sought to maximize their

improper use of the Infringing Material.

48. Their conduct demonstrates their intentional disregard of their statutory

obligations under the Copyright Act.

49. CBC/Radio-Canada's Law Department sent demand letters on October 7, 2019

and October 8, 2019 in relation to the Infringing Material. Despite

acknowledging receipt of the letters, the Respondents did not respond or

otherwise act.

50. CBC's external counsel sent an additional demand letter on October 8, 2019

and also unegLiivocally advised the respondents that the applicant would seek

injunctive relief on an urgent basis on October 10, 2019.

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51. The respondents only removed the lnfiinging Material on or around 9a~n on

October l 0, 2019, clearly to maximize their use of the Infi~nging Material.

52. All political parties, including the Conservative Party of Canada, were

specifically warned at the outset of the 2019 election campaign that use of

CBC/Radio-Canada material would not be permitted.

53. In fact, the Conservative Party published a tweet on Twitter on September 10,

2019, which included footage taken from an interview conducted by

CBC/Radio-Canada's Power and Politics on September 9, 2019.

54. CBC/Radio-Canada sent a cease and desist letter to the Communications

Director for the Conservative Party on September 11, 2019.

S5. After receiving no response to the letter of September 11, 2019, afollow-up

cease and desist letter was sent on September 13, 2019.

56. The tweet was taken down shortly after receipt of the second letter.

57. In addition, the respondents acted in a similar fashion in the lead-up to the 2015

federal election.

58. On June 25, 2015, the Conservative Party and its agents published a 45-second

video on the Conservative Party website, Facebook page and YouTube page

entitled "Justin Trudeau on Isis''.

 59. The vidco included multiple excerpts takezi from a CBC/Radio-Canada Po~vei-

and Politics prob'am broadcast on June 23, 2015, in which the host interviews

Liberal Patty of Canada Ieader 3ustin Tnideau.

60. On July 20, 201 ~, the Conservative Party published through its Twitter feed a

46-second video entitled "Where does Justin Trudeau stand on a pipeline that

would bring Western Canadian oil to Eastern Canada?"

61. The sound in tl~e video was almost entirely comprised of excerpts from a CBC

Radio One (New Brunswick) interview with Justin Trudeau.

62. The 2015 ads were only withdrawn after sen~ice of CBC/Radio-Canada's

Notice of Application for injunctive relief on August 27, 2015.

63. The respondents' repeated improper conduct, coupled with the fact that federal

elections occur at least every four years, militate in favour of a permanent

injunction and determination of CBC/Radio-Canada's rights.

Remedies

64. In addition to declarations of infringement in order to vindicate the applicant's

rights, a permanent injunction requiring the respondents to remove the

Infringing Matena] from public view and restraining the respondents from

further publishing or otherwise disseminating any other infringing material is

an appropriate remedy to ensure the applicant's rights are not further infringed.

65. Sections 3(1), 29 and 34 of the Copyi~ight,~ct, R.S.C. ]985, c. C-42;

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66. Rules 300, 373 and 374 of the Federal Cozcrt Rules, SOR/98-1 Ob;

67. The BroadcczstingAct, 1991, S.C. 1991, c 11;

68. Section 8 of the Television Broadcasting Regulations, 1987, SOR/8?-49;

69. Such further and other grounds that counsel may advise and this Honourable

Court inay deem just.

Tliis Application will be supported by the following material:

1. Affidavits to be sworn; and

2. Such further and other evidence that counsel may advise and this

Honourable Court may permit.

October 15, 2019 STOCKWOODS LLP

Barristers
Toronto-Dominion Centre
TD North Tower, Box 140
77 King Street West, Suite 4130
Toronto ON MSK 1H1

~~]~. Andrea Gonsalves (52532E)

Tel: 416-593-3497
an dreag@stockwoods.ca

Justin Safayeni (58427U)

Tel: 4 16-593-3494
justins cr stockwoods.ca

Tel: 416-593-7200
Fax: 416-593-9345

Lawyers for the Applica~lt